December

Lawyers Journal

Federal employment discrimination law

By Alan Crede

December 2011

For many years, lawyers representing Massachusetts workers have
chosen to prosecute their clients' workplace discrimination and
harassment cases under G.L. c. 151B, rather than federal law. Their
reasons for doing so were normally twofold.

First, the inclusion of a claim brought under a federal statute,
such as Title VII, the Americans with Disabilities Act (ADA), or
the Age Discrimination in Employment Act (ADEA), would of course
enable defendants to remove the case to the supposedly less
friendly confines of federal court. Second, and more importantly,
G.L. c. 151B offered much greater protections for the victims of
discrimination than cognate federal laws. At best, federal law
offered substantive protections that were duplicative of G.L. c.
151B and, at worst, federal law presented additional hurdles for
discrimination victims.

Today, while this view of things largely holds sway within the
employment bar, G.L. c. 151B has, in many areas, been eclipsed by
federal anti-discrimination law. Yes, federal law still poses many
obstacles to employees that they need not overcome under G.L. c.
151B.

For instance, under Title VII's so-called
Farragher-Ellerth defense, an employer can avoid liability
for hostile work environment harassment by showing that (1) it
acted quickly to correct the harassment; and (2) the employee
unreasonably failed to take advantage of a sexual harassment
policy. And, under Title VII's after-acquired evidence doctrine,
even employees who prove they were discriminated against forfeit
their right to economic damages if they engaged in misconduct that
their employer uncovers after their (discriminatory) termination.
Neither doctrine is recognized under G.L. c. 151B.

Nevertheless, over the past five years or so, in many different
areas, federal employment law has become more congenial for
plaintiffs than G.L. c. 151B. For instance, in order to state a
claim for retaliation under G.L. c. 151B, an employee must show
that the retaliation she suffered was "substantial enough to have
materially disadvantaged" her in the terms and conditions of her
employment.

However, in the five years since the 2006 Supreme Court case of
Burlington Northern & Santa Fe. Rwy. v. White,
employees claiming retaliation under Title VII have faced a lesser
burden: they have needed only to show that the retaliatory conduct
was the kind that might have "dissuaded a reasonable worker from
making or supporting a charge of discrimination." In its May
decision in Psy-Ed Corp. v. Klein, the Supreme Judicial
Court declined to adopt the Burlington Northern standard
for 151B cases.

Sometimes, the discrimination that an employee faces is so awful
that she resigns. In order to recover economic damages, an employee
who resigns must show that she was "constructively discharged" - in
effect that her resignation was involuntary. Under G.L. c. 151B,
this requires a showing that a reasonable person in the plaintiff's
position would have found the working conditions "so difficult as
to be intolerable."

In the 2004 Supreme Court case of Pennsylvania State Police v.
Suders, the Supreme Court adopted a friendlier standard for
constructive discharge under Title VII, one that considers whether
an employee's decision to resign constituted a "fitting response"
to her employer's conduct. To date, no Massachusetts court has so
much as cited Suders.

Federal law is also threatening to leapfrog G.L. c. 151B in the
area of disability discrimination law (or, as G.L. c. 151B terms
it, "handicap discrimination" law). The Americans with Disabilities
Act Amendments Act of 2008 (ADA-AA) amended the Americans with
Disabilities Act of 1990 in a number of important ways, including
by clarifying that the availability of "mitigating measures" (such
as eyeglasses and hearing aids) should not be considered in
determining whether an individual is disabled. Given this change in
law, the determination of disability is now essentially identical
under G.L. c. 151B and the ADA.

Furthermore, the ADA explicitly forbids "associational
discrimination" -- discrimination against a non-disabled person
"because of the known disability of an individual with whom the
qualified individual is known to have to have a relationship or
association." Thus, a non-disabled spouse can seek the protections
of the ADA if she is discriminated against for caring for a person
with whom she is "associated," such as a disabled spouse. G.L. c.
151B's disability discrimination provision, drafted in 1983,
contains no such explicit recognition of a theory of associational
discrimination.

Whether a plaintiff can state a claim for associational handicap
discrimination under G.L. c. 151B is currently being argued in the
closely-watched federal court case of Ayanna v. Dechert,
LLP. The plaintiff, a former associate at the law firm Dechert
LLP, is not disabled. His wife is disabled due to mental health
issues. The plaintiff contends that his former law firm
discriminated against him on the basis of his wife's disability. If
true, such conduct is forbidden under the federal law, but it may
be the case that such discrimination would be legal under state
law.

Over the past several decades, G.L. c. 151B and a handful of other
state employment discrimination statutes, such as the New Jersey
Law Against Discrimination, have been in the vanguard of doctrinal
developments that have advanced the rights of employees of
different races, genders and ethnicities. Whether G.L. c. 151B will
continue to occupy such a position of prominence, and whether G.L.
c. 151B will continue to remain the favored weapon for plaintiffs'
attorneys, remains to be seen.

Alan Crede is principal of The Law Office of Alan H. Crede
PC. He is a member of the MBA's Labor & Employment Law Section.
He can be reached at [e-mail alan.crede].